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55 Cards in this Set
- Front
- Back
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duty to client: list
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- COMMUNICATE with client
- act COMPETENTLY - not reveal or use client's CONFIDENCES - avoid CONFLICTS of interest - render CANDID advice - SAFEGUARD client's money & property - TERMINATE/withdraw properly - don't charge UNREASONABLE fees - act with reasonable DILIGENCE |
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duty to act competently
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- neglect a legal matter
- take a matter you're not prepared to take - fraudulent/dishonest manner - ordinary skill and capacity - continuing legal education |
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client confidentiality: list of duties
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- attorney-client privilege
- ETHICAL DUTY |
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attorney's ethical duty not to disclose: exceptions
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- client consent
- atty-client dispute - future crimes which will cause imminent death / substantial bodily harm - past fraud (unless atty-client privilege applies) |
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attorney-client privilege: exceptions
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- future crime/fraud
- dispute re atty's conduct - civil litigation between former clients - will disputes - CA: any crime (except bodily injury/death) |
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prohibited transactions between atty & client
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- adverse interests & business transactions
- use of confidential information to client's disadvantage - testamentary gifts - literary or media rights unless matter is concluded - financial assistance (except litigation expenses) - multiple parties: no aggregate settlements without disclosure to all parties - limit malpractice liability (unless client is advised in writing to seek advice of independent lawyer and given opportunity) - atty proprietary interest in subject of litigation - compensation from third party (unless client consents), and 3rd party cannot interfere - another party's lawyer is a relative, lives with, or has "intimate personal relationship" (unless client consents in writing after full disclosure) |
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former clients: duties of atty
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- preserve confidential communications
- cannot oppose former client where confidential info might be relevant - cannot oppose former client in matter that is substantially related - imputed disqualification: entire firm (unless you set up a wall?) - successive gov't & private employment: can't use confidential info, or same matter - former judge/arbitrator Informed, written consent of client can cure most of these! |
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duty to safeguard client's money & property
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- accurate records
- notify client when 3rd party gives money - promptly hand over to client |
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when lawyer MUST withdraw
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- ethical violations
- atty is incompetent |
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when lawyer MAY withdraw: ABAMR
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- client involved in criminal/fraudulent conduct
- client used atty to commit past crime/fraud - client breaks promise to lawyer - client is uncooperative - unreasonable financial burden on atty - client's objective is repugnant & imprudent - atty will be witness in the case (exceptions) |
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atty will be witness in the case: when they can still be atty
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- testimony will go to uncontested matter
- relates to legal services rendered in the case - atty called as witness for another party with no prejudice to client - withdrawal would cause undue hardship to client |
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when atty MAY withdraw: CA
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- client insists on pressing claim/defense not warranted under law and cannot be supported by good faith argument
- client involved in illegal conduct - client insists that atty violate ethical rules - client breaks promise to lawyer re. expenses or fees - inability to work w. co-counsel indicates client's best interest will be served by withdrawal - client is uncooperative |
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when atty withdraws: what must they do
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- give client reasonable notice, time to obtain another lawyer
- promptly refund all papers/property of client + unearned fees |
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atty fees
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- should be contract, in writing
- fixed fees can be collected in advance, but unearned must be returned - contingency fee (see list) - referral fees (see list) |
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contingency fee: rules
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ABAMR:
- must be in writing - prohibited in criminal & domestic relations CA: - domestic relations ok but can't encourage divorce |
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referral fees
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ABAMR: no!
CA: yes, if - client consents in writing - not unconscionable - fee is not increased due to referral |
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lawyer's diligence: standard
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REASONABLE (that's basically it)
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lawyer duties as advocate: list
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- avoid FRIVOLOUS claims
- be CANDID - be FAIR to opposing party & counsel - preserve IMPARTIALITY/DECORUM of court - special PROSECUTOR duties |
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lawyer's duty to be candid: if criminal D commits perjury
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ABAMR & CA: lawyer must withdraw if client refuses to rectify.
If can't withdraw: ABAMR: must reveal to judge in camera. CA: lawyer makes client testify in narrative form |
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lawyer's duty to be fair to opposing party & counsel
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Cannot:
- communicate with adverse party represented by counsel - threaten to bring charges in order to obtain advantage in civil case - suppress, tamper, or falsify evidence - bribe witnesses (fees ok) - knowingly violate cort orders - abuse discovery procedures - "chicanery at trial" - assist in perjury |
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special responsibilities owed by prosecutors
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- fair procedures & ensure that guilt is decided on proper/sufficient evidence
- cannot prosecute unless charge supported by probable cause - protect accused's right to counsel - must disclose evidence that may help defense or mitigate punishment |
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advertising
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ABAMR & CA
initiating personal or live telephone contact: - fee-paying work - no familial or prior professional relationship mail: - targeted direct mail ok - unless you know that person doesn't want it! agent: NO |
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confidentiality exception: client consent
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ethical duty
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confidentiality exception: atty-client dispute
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ethical duty AND atty-client privilege
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confidentiality exception: future crimes
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ethical duty AND atty-client privilege
CA: any crime! |
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confidentiality exception: future fraud
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atty-client privilege
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confidentiality exception: past fraud
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ethical duty (unless there is atty-client privilege)
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confidentiality exception: 2 former clients in civil suit
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atty-client privilege
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confidentiality exception: will disputes
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atty-client privilege
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when a lawyer may withdraw: future crime/fraud
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ABAMR
CA: any illegal conduct! |
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when a lawyer may withdraw: past crime/fraud (using the same atty)
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ABAMR
CA: any illegal conduct! |
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when a lawyer may withdraw: client breaks promise to atty
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ABAMR
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when a lawyer may withdraw: client uncooperative
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ABAMR & CA
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when a lawyer may withdraw: unreasonable financial burden on atty
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ABAMR
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when a lawyer may withdraw: client breaks promise re. expenses/fees
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CA
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when a lawyer may withdraw: client's objective is repugnant/imprudent
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ABAMR
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when a lawyer may withdraw: atty will be witness - CA or ABAMR?
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ABAMR
There are exceptions!!! |
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when a lawyer may withdraw: unable to work with co-counsel
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CA
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when a lawyer may withdraw: client insists on invalid claim/defense
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CA
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when a lawyer may withdraw: client insists atty violate ethical rules
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CA
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transactions between atty & client: literary or media rights
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Only if matter is concluded
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transactions between atty & client: financial assistance
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Only litigation expenses
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transactions between atty & client: settlements among multiple parties
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Need disclosure to all parties!
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transactions between atty & client: limit malpractice liability
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- advised in writing to seek advice of independent lawyer
- given opportunity to do so |
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transactions between atty & client: compensation from 3rd party
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- need client's consent
- 3rd party cannot interfere |
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transactions between atty & client: another party's lawyer is a relative, lives with, or has "intimate personal relationship" with atty
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- full disclosure
- client consents in writing |
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contingency fee: ABAMR
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- must be in writing
- prohibited in criminal & domestic relations |
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contingency fee: CA
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- domestic relations ok but can't encourage divorce
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referral fees: ABAMR
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no!
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referral fees: CA
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yes, if
- client consents in writing - not unconscionable - fee is not increased due to referral |
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lawyer's duty to be candid: if criminal D commits perjury and atty can't withdraw
ABAMR rule |
must reveal to judge in camera
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lawyer's duty to be candid: if criminal D commits perjury and atty can't withdraw
CA rule |
lawyer makes client testify in narrative form
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advertising: initiating personal or live telephone contact
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ABAMR & CA: forbidden!
- fee-paying work - no familial or prior professional relationship |
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advertising: mail
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ABAMR & CA:
- targeted direct mail ok - unless you know that person doesn't want it! |
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advertising: agent
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ABAMR & CA:
NO |
